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In re Poliquin

Supreme Court of Delaware

February 21, 2014

In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware: RONALD G. POLIQUIN, Petitioner

Submitted February 5, 2014.

Case Closed March 11, 2014.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Board Case No. 108188-B.

Before HOLLAND, BERGER, and JACOBS, Justices.

OPINION

Carolyn Berger Justice.

ORDER

This 21st day of February 2014, it appears to the Court that Petitioner, Ronald G. Poliquin, has petitioned for reinstatement to the Delaware Bar. The Board on Professional Responsibility (the " Board" ), following hearings on August 21, 2013 and September 30, 2013, has filed a Report on this matter pursuant to Rule 9(d) of the Delaware Lawyers' Rules of Disciplinary Procedure. The Office of Disciplinary Counsel (" ODC" ) approved the December 16, 2013 Report of the Board. Petitioner, through counsel, filed objections to the Board's Report, and the ODC has responded to those objections.

This Court has the " inherent and exclusive authority to discipline members of the Delaware Bar." [1] Although Board recommendations are helpful, we are not bound by those recommendations.[2] We review the record independently to determine whether there is substantial evidence to support the Board's factual findings.[3] We review the Board's conclusions of law de novo .[4]

In a reinstatement proceeding, the petitioner has the burden of proving, by clear and convincing evidence, that he meets the eight requirements for reinstatement.[5] Although it is clear that Petitioner has made substantial progress since he began to address his addiction in 2011,[6] the Board's factual findings are supported by substantial evidence.

The Court recognizes that the outcome of the reinstatement proceedings is of great importance to Petitioner. However, after considering the evidence presented, the Board concluded that Petitioner had not demonstrated by clear and convincing evidence (i) that he is professionally rehabilitated, (ii) that he is fit to practice, (iii) that he has not engaged in any other professional misconduct, and (iv) that his readmission would not be detrimental to the administration of justice.[7] Finally, given its findings that Petitioner has not sufficiently overcome his performance-related issues, the Board concluded that Petitioner's reinstatement would be prejudicial to the administration of justice.[8] We agree.

The Court has reviewed the matter pursuant to Rule 22(h) of The Delaware Lawyers' Rules of Disciplinary Procedure and concludes the Board's Report should be approved.

NOW, THEREFORE, IT IS ORDERED that the Report filed by the Board on Professional Responsibility on December 16, 2013 (copy attached) is hereby APPROVED;

IT IS FURTHER ORDERED that Petitioner Ronald G. Poliquin's Petition for Reinstatement is DISMISSED;

1. During the period of suspension, Respondent must fully cooperate with the ODC in its efforts to monitor his compliance with the suspension order;
2. Petitioner must remain active with DELAP and submit to any drug or alcohol testing deemed appropriate by and at the direction of the Executive Director of DELAP. The Executive Director of DELAP shall have the discretion to report to the ODC as she deems appropriate.
3. As reinstatement is not automatic, should Respondent apply for reinstatement, any such application must be made pursuant to Rule 22 of the Delaware Lawyer's Rules of Disciplinary Procedure following the suspension period;
4. Petitioner must reimburse the ODC for the costs of this proceeding and
5. This Order shall be disseminated by the ODC as provided in Rule 14 of the Delaware Lawyers' Rules of Disciplinary Procedure.

The matter is hereby DISMISSED.

REPORT OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

December 16, 2013

Dear Ms. Aaronson and Mr. Beauregard:

Enclosed please find the Report of the Board in the above-referenced matter.

Very truly yours,

Lisa A. Schmidt

REPORT OF THE BOARD PURSUANT TO RULE 22

This matter was heard by a panel of the Board on Professional Responsibility (the " Board" ) on August 21, 2013 and September 30, 2013. Members of the panel were Lisa A. Schmidt, Esquire (Chair), Gary F. Traynor, Esquire and Ms. Melissa Thoroughgood (the " Panel" ). The purpose of the hearing was to consider the petition of Ronald G. Poliquin (" Petitioner" ) for reinstatement.

BACKGROUND

Petitioner was admitted to practice in the Supreme Court of the State of Delaware in 2003 and was engaged in the private practice of law with various firms and then as a solo practitioner. On August 9, 2013, the Supreme Court issued an order (the " Order" ) approving the Board's report attached thereto (the " Report" ), which recommended suspending Petitioner from the practice of law for a period of 6 months and one day. The Report contains a detailed recitation of the Board's factual findings with respect to three separate disciplinary matters involving the Petitioner which occurred between 2009 and 2011, an analysis of liability and sanction recommendations.

In the first matter, Board Case No. 2012 0058-B, Petitioner admitted to violating the Delaware Lawyers' Rules of Professional Conduct (the " Rules" ) Rules 1.1, 1.3, and 8.4(d) by failing to conduct discovery and meet deadlines. (Report at 8). In Board Case No. 2011-0084B, Petitioner also admitted to missing deadlines and violating Rules 1.1, 1.3, 3.4(c), 3.4(d) and 8.4(d). (Report at 9). In Board Case No. 2011-0084B Petitioner was found to have violated Rules 3.3(a), 8.4(c) and 8.4(d) in connection with his failure to disclose a prior private admonition during a Rule to Show Cause hearing on August 25, 2010 regarding why he should not be sanctioned pursuant to Supreme Court Rule 33 for performance deficiencies. (Report 25-26) The findings and analysis will not be repeated here except as to certain findings of the Board which bear on the issue of Reinstatement before this Panel.

Petitioner testified that he realized he had a drug dependency in May 2011. (Report at 8). Petitioner had issues with " ADD" or " ADHD" and the medications prescribed to treat his symptoms became a bigger problem. (Report 19). Petitioner contacted Ms. Waldhauser, Executive Director of the Delaware Lawyers' Assistance Program (" DELAP" ) in March of 2011 and began seeing an addiction counselor. (Report at 19-20). Eventually he entered a 30-day program at the Caron facility in Texas in May 2011. (Report at 20). Thereafter, Petitioner agreed to work with Ms. Waldhauser " indefinitely, to undergo random urinalysis testing, to go to 12 step support group meetings, obtain a sponsor, go to counseling and to meet with her bi-monthly in person." (Report at 20). The Board found that Petitioner had followed through as agreed. (Report at 20).

Petitioner also testified that he worked with the Professional Guidance Committee and determined to leave the firm he was practicing with and enter a solo practice " since he was not receiving support and had no control over decision making." (Report at 21). Petitioner hired an assistant, invested in legal software that he believed had a good calendaring system and started taking on fewer clients. (Report at 21). Petitioner had resumed practice for approximately one year after completing the Caron program prior to the issuance of the Order.

In recommending a sanction, the Report summarized remaining concerns:

Here, there is evidence that Respondent has had a chemical dependency. It is undisputed that he entered a 30-day treatment program at the Caron Treatment Center in Princeton, Texas. (Tr. at 15; S. Tr. at 48) However, Respondent testified that his difficulties in managing his practice were caused by his attention deficit disorder which was first diagnosed in 2004 or 2005. (S. Tr. at 46) He described his dependency on medication used to treat his attention deficit disorder as " progressive." (S. Tr. at 47) Eventually, as he testified, the solution became the problem. ( Id.) He became addicted to Adderall as well as another prescription narcotic that was a depressant namely, Benz. (S. Tr. at 26) Thus, Respondent's performance issues were initially caused by his attention deficit disorder, according to his own testimony. Those issues were then compounded by what became an addiction to the medication that had been prescribed to address that condition.
While Respondent testified that he is approaching his one-year anniversary of being drug-free, (S. Tr. at 58), the Panel remains concerned that while his addiction to these narcotics no doubt exacerbated his problems, the underlying cause -- the attention deficit disorder -- remains.
Respondent offered no medical evidence, other than his own testimony, to attempt to establish that his addiction to prescription drugs caused his performance issues. The Panel cannot conclude that the second element has been satisfied.
Nor can the Panel conclude that the third and fourth elements are satisfied. The Panel commends the Respondent for the efforts he has made thus far and encourages his further progress. Again, the Panel remains concerned that while the drug dependency issues appear to be under control, an underlying cause of his problems, according to Respondent's testimony, is the attention deficit disorder. (S. Tr. at 69-70) Now, Respondent appears to be taking no medication in aid of that condition. Instead, Respondent is attempting to address his attention deficit disorder condition through better managing his case load, obtaining additional staff assistance, and through the use of better office management systems. It is simply too early to tell whether these steps will effectively address the performance issues.

(Report at 29-30)(footnotes omitted). As a result of these concerns, the Board recommended a suspension of 6 months and one day so that Petitioner would be " required to demonstrate his fitness to practice law before being readmitted." (Report at 47).

THE PETITION FOR REINSTATEMENT

In February 2013 Petitioner notified the Office of Disciplinary Counsel (the " ODC" ) of his intent to petition for reinstatement pursuant to Rule 22(e) of the Delaware Lawyers' Rules of Disciplinary Procedure. Rule 22(e) provides:

The lawyer shall thereupon comply with any procedures deemed appropriate by the ODC for the purpose of gathering information for presentation to the Board, including the submission of any information or waivers requested by the ODC, and the advance payment to the ODC of a deposit for the anticipated costs of the reinstatement proceeding. The ODC's gathering of information as to the lawyer's proposed candidacy for reinstatement may include physical or psychological examinations of the lawyer at the lawyer's expense.

Petitioner provided the ODC with a completed Reinstatement Questionnaire on February 7, 2013 and authorized the release of treatment and other records in connection with the ODC's gathering of information. On May 14, 2013 the Petitioner filed his Petition for Reinstatement, (the " Petition" ). The ODC filed an answer on June 12, 2013 (the " Answer" ) objecting to the Petition and indicating that the " ODC has not had sufficient time to ascertain whether the information provided in the questionnaire is complete." (Answer ¶ 16). A hearing was scheduled for July 18, 2013, but by letter dated June 18, 2013, the ODC requested a continuance because it had not had time to complete its investigation. Petitioner did not oppose the continuance but requested through counsel that a new hearing date be promptly set. By letter dated June 19, 2013, the Board granted the request for a continuance but asked the ODC to provide a status update on or before July 30, 2013 so a new hearing date could be set as soon as practicable. Based on the status update provided, a hearing was scheduled for August 21, 2013. On August 15, 2013 the Panel chair and counsel discussed the status of remaining discovery issues and the witnesses anticipated for the August 21 hearing and determined that a second day of testimony would be required. Due to scheduling issues the next date available was September 30, 2013.

Over the course of two days of testimony, the Board heard testimony from 14 witnesses including 2 expert witnesses, Respondent's current therapist, Carol Waldhauser of DELAP, several character witnesses and James Liguori, Esquire, the receiver appointed for Respondent's practice after his suspension. In addition, the Board was presented with an extensive set of exhibits at the hearing.[1]

Based on the record before it and for the reasons set forth herein, the Board recommends that the Respondent's Petition for Reinstatement be denied.

FINDINGS AND CONCLUSIONS

Rule 22 of the Delaware Lawyers' Rules of Disciplinary Procedure provides that a petitioner seeking reinstatement shall have the burden of demonstrating by clear and convincing evidence each of the following requirements:

1. The petitioner's professional rehabilitation, including substantial rehabilitation from any drug or alcohol problem from which the petitioner had suffered;
2. The petitioner's compliance with all applicable disciplinary orders and other rules, including conditions of restitution;
3. The petitioner's fitness to practice;
4. The petitioner's overall competence and current awareness of recent developments in the law;
5. That the petitioner has not engaged in any other professional misconduct in any jurisdiction since suspension or disbarment;
6. That the petitioner sincerely recognizes the wrongfulness and seriousness of any misconduct upon which the suspension or disbarment was predicated;
7. The petitioner has the requisite honesty and professional integrity to resume the practice of law; and
8. That the petitioner's resumption of the practice of law will not be detrimental to the administration of justice.

Petitioner's Rehabilitation

The first factor to be decided by the Panel, upon which most of the testimony[2] at the hearing was focused, is whether Petitioner has demonstrated professional rehabilitation by clear and convincing evidence. As identified in the Report, this is a two part inquiry. First, whether the Petitioner has remained in recovery from his addiction to the prescription narcotics used to treat attention deficit disorder? Second, whether Petitioner has addressed the underlying cause of his performance issues or the attention deficit disorder?

The Panel heard testimony from Petitioner's expert, Dr. Joseph Garbeley, an addiction psychiatrist at the Caron Treatment Center in Pennsylvania. Dr. Garbeley testified that his practice is " through the lens of addiction." (R. Tr. 125). Dr. Garbeley evaluated Petitioner and reached the conclusion that he is fit to practice law (R. Tr. 129) with some recommendations for continued monitoring. (Ex. C). Dr. Garbeley testified that in treating professionals " the job for us is to get them back to work. That's the goal and that's how we look at it and see how they do at work." (R. Tr. 134). Dr. Garbeley did not make any determination regarding whether Petitioner has an attention deficit disorder but indicated that he believed his performance issues were related to addiction. (R. Tr. 128, 142, 160). Dr. Garbeley's focus was on the evidence of Petitioner's sustained recovery from substance abuse. Dr. Garbeley did agree, however, that Petitioner " needs to be in ongoing therapy and treatment" but in his view that should not preclude him from practicing.[3]

The ODC presented testimony from Dr. Neil Shore, a psychiatrist with special qualifications in addiction psychiatry. (R. Tr. 376). Dr. Shore evaluated Petitioner and reached the conclusion that he is not ready to return to the practice of law. (Ex. 25). Dr. Shore questioned whether Petitioner has ADHD and recommended further evaluation. (R. Tr. 380-381). Dr. Shore opined that Petitioner needed to further demonstrate an adequate period of sustained rehabilitation, including " at least six months, maybe more, of negative urines" [4] and weekly individual psychotherapy. (R. Tr. 393-96). Dr, Shore pointed to a " pattern of omission of key pieces of information" by Respondent as something to be addressed in therapy. (R. Tr. 386-88).

Petitioner also offered testimony from Mr. Russell Widder, a licensed clinical social worker. Mr. Widder testified that he held approximately 20 therapy sessions with the Petitioner, meeting approximately two times per month since October 2012. (R. Tr. 87, 102-03). Mr. Widder indicated that a motivating factor for Petitioner in seeking therapy was his need to petition for reinstatement. (R. Tr. 102-03). Mr. Widder opined that Petitioner should continue therapy two times per month for another year at a minimum (R. Tr. 106) because, in his view, there is still work to be done in coping with the elements or symptoms of attention deficit disorder. (R. Tr. 108-09). Nonetheless, Mr. Widder opined that Petitioner is fit to return to the practice of law. (R. Tr. 95). Mr. Widder's opinion was probed by the ODC on cross-examination and by members of the Panel. Unfortunately, the Panel cannot rely on Mr. Widder's opinion regarding Petitioner's fitness to return to the practice of law because Mr. Widder did not have a complete understanding of the conduct that led to Petitioner's suspension, the practice conditions that were implemented unsuccessfully in the past and the specific areas of concern identified in the Report. (R. Tr. 118-123).

The Petitioner also offered testimony from his Narcotics Anonymous (" NA" ) sponsor regarding his participation in and commitment to the 12-step process. Similar testimony was offered from another NA member as well.

There was a material dispute of fact presented regarding whether Petitioner had returned to see Dr. Villabona, the physician who had prescribed the narcotics to treat his attention deficit disorder, after completing his treatment at the Caron facility. There was a note in Dr. Villabona's file dated July 2, 2011 indicating that Petitioner had an office visit on that date. Dr. Villabona testified by deposition that his files were damaged in a flood and the note was misdated and it should have been July 2010. (Ex. 26). Unfortunately, Petitioner did not have any drug screenings until February 2012 to dispel the suggestion of relapse. The Panel does not need to decide this factual dispute since subsequent, albeit more recent, evidence supports the conclusion that Petitioner has remained in recovery.

The Panel also heard testimony from Petitioner. Petitioner testified that his " clean" date is May 25, 2011 or the date he entered the Caron facility. (R. Tr. 283). He discussed his commitment to his recovery and regular participation in NA. (R. Tr. 290-291). Petitioner has also stayed involved with DELAP through Ms. Waldhauser. (R. Tr. 294). Petitioner, however, has been less diligent in treating the underlying issues that lead to being prescribed the medication that became the problem. After returning from the Caron facility in June 2011,[5] Petitioner met with Mr. Maloney, a social worker, two times and did not resume therapy until June of 2012, after the Report was issued recommending sanctions. (R. Tr. 315). Although Petitioner no longer believes he has " ADHD," he admits to struggling with anxiety and focus. (R. Tr. 343-344). These are issues he is currently working with Mr. Widder to address.

The most concerning testimony came from James Liguori, Esquire, who was appointed as the receiver for Petitioner's law practice when the Order suspending the Petitioner was entered. Mr. Liguori, who appeared to be generally supportive of the Petitioner's petition for reinstatement, testified that Petitioner was very attentive in assisting with questions and responding to requests. (R. Tr. 35). Mr. Liguori, however, reviewed case files with Petitioner after the Order was issued and determined that there were imminent deadlines looming, including a Third Circuit brief due in two days, a Supreme Court brief and a statute-of-limitations matter. (R. Tr. 37-38). There were no drafts prepared at the time Mr. Liguori received the files. (R. Tr. 38). Fortunately, there was no harm to any clients since Mr. Liguori was able to get extensions. (R. Tr. 38).

Petitioner's testimony regarding the changes he implemented in his practice after receiving treatment at Caron demonstrates an unawareness that there are still issues beyond his addiction which need to be addressed. Petitioner testified:

I think after I got out of Caron I kind of buckled down and said, okay, I need to do these things consistently. I got refocused on those issues. That's one the things I spoke with Clay Jester about and spoke with Carol about and I went to several CLE's about -- there was a solo practitioner course at University at Maryland that I was referred to.
One of the reasons I went to solo practitioner is because I didn't feel like I was getting the staff support and the support I needed when I was working at the Schaeffer firm for a period of time. I found that even working as a solo I could at least hire a secretary, put in the practice management system I wanted to and make sure I was staying on top of my cases.
As far as going from that 2006 letter I think I did that well for a period of time. I think it slipped off because of my drug use and I think after Caron I got refocused on doing those things that make for a good practice.

(R. Tr. 367-68; see also, R. Tr. 370-71 (testimony regarding mechanisms put in place " to make sure I am on top of everything" ). These changes alone without the benefit of additional therapy as recommended by Caron proved to be insufficient.

This evidence leads the Panel to conclude that, despite a one year period of recovery from addiction, the underlying issues that led to Petitioner's performance deficiencies remained. Accordingly, the Panel does not believe that Petitioner has met his burden with respect to his rehabilitation.

Fitness to Practice Law

Many of the same facts that bear on whether Petitioner has demonstrated substantial rehabilitation are relevant to a determination of whether Petitioner is fit to resume the practice of law. Both physicians who examined the Petitioner as well as his treating therapist agree that Petitioner should continue therapy. That was also the Caron facility recommendation upon his discharge. To be sure, the fact that further therapy is warranted does not, standing alone, mean that Petitioner is unfit to practice law. Yet when this evidence is coupled with unrebutted evidence that the Petitioner had allowed his case files to fall into apparent disarray well into his addiction-recovery period and, notably, while under this Court's scrutiny for performance deficiencies, the Panel is left to conclude that the Petitioner has not demonstrated by clear and convincing evidence that he is ready to resume practice.

Other Professional Misconduct

The ODC has raised the issue of whether Petitioner has violated Rule 8.1(b) in connection with Petitioner's failure to identify Dr. Villabona on his Reinstatement Questionnaire. The Restatement Questionnaire completed by Petitioner in February 2013 contains the following question:

Do you currently (or within the past 5 years) have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way affects, or if untreated would affect, your ability to practice law in a competent and professional manner?
X Yes No
If your answer to (a) or (b) above is affirmative, provide the name, address telephone number and health care specialty of any treating physician, psychologist, social worker, or other health care provider.

(Ex. 1 at 9). Petitioner failed to list Dr. Villabona, the physician who treated Petitioner for attention deficit disorder between 2007 and 2011 and prescribed the narcotics which led to his addiction. ( See Ex. 26). Petitioner only provided Dr. Villabona's name to the ODC after a request was made by the ODC for the name of the doctor who prescribed the narcotics. (R. Tr. 309). When asked why Dr. Villabona's name was not listed on the Reinstatement Questionnaire Petitioner claimed it was " inadvertent" and should have been disclosed. (R. Tr. 309-11). It is troubling that Petitioner did not exercise more care in completing the Reinstatement Questionnaire and further suggests that he has not overcome his issues with focus and diligence.

The ODC also questioned Petitioner's failure to advise the attorney who took over a matter after Petitioner's suspension of a referral fee. (R. Tr. 349-51). The Petitioner indicated that he had forgotten that a fee was owed. (R. Tr. 351). While ODC has not charged Petitioner with any rules violations in connection with either of these incidents, the Panel cannot conclude that the Petitioner has met his burden of demonstrating that there has been no other misconduct. Moreover, even if Petitioner's failure to identify Dr. Villabona does not constitute professional misconduct, this lapse in memory, judgment and/or diligence casts doubt on Petitioner's fitness to practice law.

Administration of Justice

Lastly, the ODC argues that Petitioner's reinstatement would be prejudicial to the administration of justice. The Panel agrees. While the Petitioner should be commended for his success in recovery from his narcotics addiction, the Panel concludes that he has failed to demonstrate that he has adequately addressed the issues caused by either attention deficit disorder or anxiety and an inability to focus.

The Remaining Factors

The Panel was not presented with any evidence of any dispute about Petitioner's compliance with the remaining requirements of Rule 22.

RECOMMENDATION

The Panel applauds the Petitioner's efforts to overcome his addiction and encourage him to continue his recovery. Notwithstanding the evidence of his success in that regard, the Panel's decision is based on the absence of convincing evidence that he has addressed the underlying cause of his performance issues. The testimony regarding the condition of his files when Mr. Liguori stepped in and the inexplicable failure to identify Dr. Villabona are central to the Panel's determination.

The members of the Panel have concluded that the documents and testimony submitted fail to demonstrate that Petitioner has satisfied, by clear and convincing evidence, the requirements for reinstatement and, therefore, recommends that the Petition be denied.

The Panel reaches this conclusion cognizant of the fact that Petitioner may not reapply for reinstatement for one year. While sympathetic to the financial hardship this imposes, Petitioner's actions have led to this result. Petitioner waited for one year before seeking counseling despite the Caron recommendation, failed to undergo regular drug screenings until petitioning for reinstatement, and failed to carefully complete the Reinstatement Questionnaire which delayed these proceedings.

Lisa A. Schmidt

Lisa A. Schmidt, Esquire, Chair

Gary F. Traynor

Gary F. Traynor, Esquire

Melissa Thoroughgood

Melissa Thoroughgood

Dated: December 16, 2013


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